Vanderbilt’s Professor Brian T. Fitzpatrick and UF Law Visiting Professor Darren Hutchinson discuss the past, present and future of affirmative action at UF Law on Feb. 20. The discussion was hosted by the Federalist Society and the Black Law Students Association. (Photo by Haley Stracher)

By Matt WalkerSenior writer

During an event co-sponsored by the UF Black Law Students Association and the UF Federalist Society last Wednesday, it quickly became evident that there are many considerations to be made in the debate over the merits and effectiveness of affirmative action in the university admissions process.

“Fisher v. University of Texas: The Past, Present, and Future of Affirmative Action in Higher Education,” featured Brian T. Fitzpatrick of Vanderbilt Law School and Darren Hutchinson, of American University and current visiting professor at UF Law discussing the pros and cons of affirmative action. UF Law Professor John Stinneford moderated the panel.

Currently before the Supreme Court, the case of Fisher v. University of Texas deals with a white plaintiff who was denied admission to the University of Texas based on a number of considerations, including race. The court will be determining if the Equal Protection Clause of the 14th Amendment allows for the consideration of race in the University of Texas’ decision. Less than 10 years ago, the court ruled that race could be a consideration in Grutter v. Bollinger.

The discussion began by looking back at the history of affirmative action and how it may or may not have benefitted those who have been impacted by it.

“To the extent affirmative action has helped to open doors to colleges and universities, given what we know about education and how it transforms income over time, transforms self, transforms employability over time, it definitely has been something that’s been beneficial,” Hutchinson said.

Fitzpatrick was less sure of the positive effects of affirmative action, saying the jury is still out.

“There have now been some very rigorous, very professional, empirical studies on the consequences of affirmative action in education that cast great doubt on whether racial preferences actually benefit the very people they are intended to benefit,” he said.

Fitzpatrick said the studies suggest there would be more African-America lawyers today if affirmative action did not exist, because the practice winds up allowing some students into programs above their credentials, which results in higher dropout rates and lower bar passage rates.

The panelists also discussed their thoughts on how the Supreme Court will rule on Fisher case.

Fitzpatrick said he thinks the court will strike down the University of Texas affirmative action program for pragmatic reasons, saying the university has not proven that it needs that level of diversity to accomplish particular educational benefits.

Hutchinson said he thinks the question might come down to looking at what the state of Texas needs to do to deliver quality education to all of its students. He said although he hates predicting the outcomes of cases, he doesn’t “think they’ll say affirmative action is unconstitutional.”

The speakers touched on other issues related to affirmative action as well, including the question of where Asians fit in with affirmative action, and how Texas is now a state where the majority of the population are racial minorities.

Fitzpatrick joined Vanderbilt’s law faculty in 2007 as an associate professor after serving as the John M. Olin Fellow at New York University School of Law. He received the Hall-Hartman Outstanding Professor Award which recognizes excellence in classroom teaching for his Civil Procedure course for the 2008-09 academic year.

Hutchinson has written extensively on issues related to Constitutional Law, Critical Race Theory, Law and Sexuality, and social identity theory. His numerous publications have appeared in many journals including: the Cornell Law Review, the UCLA Law Review, the Michigan Journal of Race and Law, the University of Pennsylvania Journal of Constitutional Law, and the Journal of Law and Inequality among others. Hutchinson also authors Dissenting Justice, which is a blog related to law and politics.